Bugs Bunny Goes to Washington

The House has just passed a clever attempt at thwarting Constutional separation of powers, and in particular the quaint notion of judicial review. Go, House! But the analysis on OxBlog makes me think this law was written by a trickster-god:

Article III of the Constitution says the following:

The judicial power of the United States shall extend to all cases presenting federal questions. (Art. III, sec. 2, cl. 1). Shall is not the same as may — “shall” is non-discretionary. It would be unconstitutional for the judicial power of the United States not to extend to these cases.

The federal judiciary must consist of a Supreme Court. It may also consist of inferior courts, as Congress shall direct. (Art. III, sec. 1).

The Supreme Court must have original jurisdiction over certain enumerated classes of cases. Congress may make exceptions as to the appellate jurisdiction of the Supreme Court over other types of cases. (Art. III, sec. 2, cl. 2).

Here’s what we can conclude from this. Combining (1) and (2): If Congress does not create any inferior courts, then the Supreme Court, as the entirety of the federal judiciary, must exercise all of the functions of the federal judiciary. This means that it must have jurisdiction over all federal questions. This would be original jurisdiction (it couldn’t be appellate — there are no lower court from which to appeal). In this case, (3) would be irrelevant — Congress’ power to limit the Supreme Court’s appellate jurisdiction wouldn’t come into play because the Supreme Court would be exercising original jurisdiction, not appellate. Result: the Supreme Court would have to be able to exercise jurisdiction over federal questions cases.

The law – sorry, bill, it hasn’t made it through the Senate yet and probably won’t – in question strips all inferior, Congress-made federal courts of jurisdiction over the Defense of Marriage Act. It also strips the Supreme Court of appellate jurisdiction, but if Josh Chafetz has it right, I’m not sure why that would matter. After all, if Congress fails to provide an inferior court with original jurisdiction over a federal question, the Supreme Court gets it – automagically, through the mystic powers of Article III Section I. By insisting that there be no inferior courts with original jurisdiction over DOMA, H.R. 3313 is actually creating a quick, easy path for a Supreme Court case on gay marriage, almost forcing the Court to grant certiorari.

Or maybe I’m missing something. I’m not a lawyer, or even a semi-serious afficionado of constitutional law. Maybe this is what the bill’s proponents want – settle the issue now, before too many tolerant kids grow up and vote and become judges and ruin any chance of such hateful nonsense ever becoming enshrined in SCOTUS precedent. But I can’t help thinking of Bugs Bunny, who is surely the trickster-god of our times, and the amount of time he spends dressing up like a girl and kissing Elmer Fudd…

UPDATE: Although Josh Chafetz wrote back to more or less confirm my interpretation of his interpretation, one of blogland’s favorite genuinely legitimate law professors has spoken, and referred us to this outline by a superly-duperly genuine law professor who even thinks about the issue on a regular basis. The apparent consensus legal opinion is that (1) Article III does, in fact, permit Congress to limit federal jurisdiction in very narrowly specified ways, for meaningful definitions of federal jurisdiction and not just the meaningless one put forth on OxBlog, but (2) the narrow specifications must be decided by barroom brawl.

One possible brawl outcome is OxBlog’s argument, but with explicit acknowledgement of a “permissive tier” of cases currently heard by federal courts that aren’t “federal questions”. Another would hold H.R. 3313 unconstitutional because it attempts to tell the courts not just which cases to decide, but how to decide them (“You may hear this case and answer any other constitutional questions raised, BUT NOT THAT ONE”). The third, of course, is the operating assumption of the bill, where the only judicial review process untouchable by Congress takes place in state courts.

State courts are also required to interpret and uphold the U.S. Constitution, so all is not lost. But it’s sure not as funny this way, boo.